726 F.3d 631 (5th Cir. 2013), 12-10312, Whitley v. Hanna

Docket Nº:12-10312
Citation:726 F.3d 631
Opinion Judge:KING, Circuit Judge:
Party Name:NATASHA WHITLEY, Plaintiff-Appellant v. JOHN NICK HANNA; ROBERT BULLOCK; MICHAEL MURRAY; ROBERT GRUBBS, Defendants-Appellees
Attorney:For NATASHA WHITLEY, Plaintiff - Appellant: Jeff S. Edwards, Austin, TX; Lisa Bowlin Hobbs, Kuhn Hobbs, P.L.L.C., Austin, TX; Kurt Howard Kuhn, Kurt Kuhn, P.L.L.C., Austin, TX. For JOHN NICK HANNA, ROBERT BULLOCK, Defendants - Appellees: Arthur Cleveland D'Andrea, Office of the Attorney General, ...
Judge Panel:Before KING, DAVIS, and ELROD, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge, concurring only in the judgment. JENNIFER WALKER ELROD, Circuit Judge, concurring only in the judgment:
Case Date:August 08, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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726 F.3d 631 (5th Cir. 2013)

NATASHA WHITLEY, Plaintiff-Appellant

v.

JOHN NICK HANNA; ROBERT BULLOCK; MICHAEL MURRAY; ROBERT GRUBBS, Defendants-Appellees

No. 12-10312

United States Court of Appeals, Fifth Circuit

August 8, 2013

As Revised August 28, 2013.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Texas.

For NATASHA WHITLEY, Plaintiff - Appellant: Jeff S. Edwards, Austin, TX; Lisa Bowlin Hobbs, Kuhn Hobbs, P.L.L.C., Austin, TX; Kurt Howard Kuhn, Kurt Kuhn, P.L.L.C., Austin, TX.

For JOHN NICK HANNA, ROBERT BULLOCK, Defendants - Appellees: Arthur Cleveland D'Andrea, Office of the Attorney General, Office of the Solicitor General, Austin, TX; Seth Byron Dennis, Assistant Attorney General, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX.

For MICHAEL MURRAY, ROBERT GRUBBS, Defendant - Appellees: Jon Mark Hogg, Jackson Walker, L.L.P., San Angelo, TX.

Before KING, DAVIS, and ELROD, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge, concurring only in the judgment.

OPINION

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KING, Circuit Judge:

Plaintiff-Appellant Natasha Whitley appeals the dismissal of her 42 U.S.C. § 1983 action and the denial of her motion to amend her complaint. Whitley's claims arise out of former City of Brownwood police sergeant Vincent Ariaz's sexual abuse of her. Defendants-Appellees John Hanna, Robert Bullock, Michael Murray,

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and Robert Grubbs were state officers involved in the investigation and arrest of Ariaz. Whitley argues that Appellees failed adequately to protect her from Ariaz, and used her as " sexual bait" to strengthen their prosecutorial case against him. The district court granted Appellees' motions to dismiss after finding that Whitley failed to state a § 1983 claim and that Appellees would be entitled to qualified immunity. It also denied Whitley's motion to amend her complaint. For the following reasons, we AFFIRM the district court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2000, the City of Brownwood created Explorer Post 1150 as part of the " Explorers" program--a school- and work-based program to introduce young people to various vocations. Explorer Post 1150 was established to teach participants about law enforcement, including police training and operations. Vincent Ariaz, a then-sergeant with the City of Brownwood Police Department, acted as Explorer Post 1150's advisor. In January 2007, Ariaz was investigated for alleged abuse of one of the program's female participants (" A.M." ). A Brownwood police officer, together with appellee Texas Ranger John Hanna, conducted the investigation.

Hanna interviewed A.M., and learned that Ariaz would use her as an example for activities like handcuffing and have her stay late when no one else was around. Hanna also discovered from A.M. that Ariaz would rub his body against hers and ask her about her sexual experiences. A.M. further informed Hanna of an incident in which she and Ariaz were alone in a storeroom. Ariaz allegedly closed the door, turned off the lights, and proceeded to kiss A.M. and fondle her breasts. Despite A.M. telling him to stop, Ariaz continued until she was able to make noise and escape. A.M.'s mother and her then-boyfriend also told Hanna that Ariaz had sent A.M. numerous sexually suggestive text messages, including proposing having sex in a motel room. The boyfriend also lodged a complaint against Ariaz, to no apparent effect. An affidavit by another police officer stated that Ariaz had expressed a desire to engage in different sexual acts with a young girl.

Whitley's allegations do not disclose what action, if any, the City of Brownwood or the Brownwood Police Department took in response to Hanna's investigation or Ariaz's conduct. We do know that Ariaz continued as a police officer for the City of Brownwood. Hanna, following his investigation, notified his lieutenant, appellee Robert Bullock, that he had obtained a " written statement detailing a pattern of sexual harassment, text messages of [a] sexual nature, and one incident of sexual contact." The report was approved by Bullock on February 19, 2007, and stated that the investigation " would remain active."

Sometime thereafter, Ariaz's attention shifted to another Explorers participant--fifteen-year-old appellant Natasha Whitley. Ariaz began " grooming" Whitley by giving her gifts, promoting her to the highest position in the Explorer post, repeatedly using her as his example in class, and writing her love notes that she kept in her Explorers locker. Ariaz's advances grew progressively more intimate and eventually became sexual around June 2007.

Although various individuals were aware that Ariaz was engaging in suspicious conduct, it does not appear that Hanna learned of this until July 3, when another member of the Brownwood Police Department, Richard Williams, noticed Whitley driving Ariaz's truck and questioned her. In the course of speaking with her, Williams learned that Ariaz and Whitley drove together on a nightly basis.

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Williams thereupon contacted Hanna, who resumed his investigation and quickly confirmed that Ariaz allowed Whitley to drive his vehicle, rode with her almost every night, and spent hours with her parked in locations that were secluded or known " make out" areas.

On July 9, Hanna met with the Brown County District Attorney, appellee Michael Murray, and the Brown County Sheriff, appellee Bobby Grubbs. Also present were Brown County's Assistant District Attorney, a District Attorney investigator, the Brown County Chief Deputy, a sergeant with the Texas Department of Public Safety, a Brownwood police sergeant, and members of the West Central Interlocal Drug Task Force. The group discussed Hanna's investigation into Ariaz's conduct and agreed that Hanna would continue monitoring Ariaz to catch Ariaz in the act of abusing Whitley, and thus strengthen the prosecutorial case against him. Bullock endorsed the plan after Hanna informed him of the July 9 meeting.

Hanna proceeded to install video surveillance cameras in the hallways of the Brownwood Annex building--one of the locations Ariaz was known to take Whitley. Hanna also initiated GPS surveillance of Ariaz's car. On July 10 and 11, Ariaz was observed with Whitley in the Annex building. Ariaz repeatedly hugged and kissed Whitley. Ariaz also was observed entering an Annex building courtroom where Whitley was waiting, and later exiting without his belt, followed by Whitley, who emerged adjusting her shirt. Ariaz and Whitley were known to spend lengthy periods of time in the Annex building courtroom. Hanna informed Bullock, Murray, and Grubbs of these events.

On July 12, Hanna assembled three two-man teams to surveil Ariaz and Whitley. Over the following days, Ariaz and Whitley repeatedly were observed engaging in the previously documented conduct. On July 17, Hanna and another investigator hid themselves in the closet of the courtroom Ariaz and Whitley previously had entered. Sometime after 2:30 a.m., Hanna witnessed Whitley sitting or lying on a table with Ariaz positioned over her. Ariaz and Whitley then left, but returned at 6:13 a.m. Whitley lay down, and Ariaz proceeded to kiss her for several minutes. He then placed his head in Whitley's " crotch area," whereupon Hanna exited the closet and intervened. Ariaz was arrested and indicted on more than twenty-five counts of sexual assault of a child and two counts of indecency with a child.1 He ultimately pleaded guilty to two counts of sexual assault of a child and no contest to indecency with a child. Ariaz currently is serving a twenty-year prison sentence.

On November 3, 2008, Whitley's parents filed suit in federal district court against, among others, the City of Brownwood, the Brownwood Police Department, the Brownwood Chief of Police, and the Boy Scouts of America, in an action styled Whitley v. Ariaz, et al., No. 6:08-CV-85-C. That lawsuit was dismissed upon settlement.

On August 19, 2011, Whitley herself filed suit against Hanna and Bullock, in their individual capacities, and against Murray and Grubbs in their individual and official capacities (collectively, " Appellees" ). Whitley also sought declaratory and injunctive relief against Appellees in their official capacities. Her complaint primarily contended that Appellees violated her constitutional rights by failing timely to intervene to stop Ariaz's abuse of her.

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Murray and Grubbs filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) on September 13. On the same day, Hanna and Bullock filed a separate motion to dismiss for failure to state a claim under Rule 12(b)(6), in which they asserted qualified immunity. Subsequently, Murray and Grubbs filed an original answer in which they also raised a qualified immunity defense. Following the filing of Appellees' motions to dismiss, Whitley filed a motion to amend her complaint.

In an order entered on February 21, 2012, the district court granted both motions to dismiss and denied Whitley's motion to amend her complaint. The district court began by reviewing the proposed amended complaint and concluded that the amendments were " nothing more than reiterations of the original § 1983 claim premised upon substantive due process rights." The court viewed the proposed amendments only as alleging that Appellees engaged in a conspiracy to deprive Whitley of her constitutional rights, a claim that was not actionable under § 1983 without an underlying constitutional violation. Further, it found that " the proposed additional facts that [Whitley] wishes to add to her pleadings do nothing to change the claims brought by...

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